01996660
03-28-2002
Vincent D. McBride, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Vincent D. McBride v. United States Postal Service
01996660
03-28-02
.
Vincent D. McBride,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01996660
Agency No. CC-907-0072-99
Hearing No. 340-99-3379X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) class complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant claims the agency discriminated
against him and a class of persons on the bases of race (Caucasian),
color (white), sex (male), national origin (Irish/Italian), religion
(Catholic) and age (DOB: February 22, 1956), when the agency engaged in
discrimination, unlawful harassment, and retaliatory actions motivated
by class participation in federally protected civil rights. Complainant
further claims that agency officials engaged in the following actions: the
sowing of misinformation about the complaining class and its credibility;
the erecting of roadblocks to discourage the class from engaging in
protected activity by means of surveillance and petty postal rules;
the selection of specific employees to be harassed and discharged; and
the discrimination against career employees who have reached the upper
grade level of the pay scale.
For the following reasons, the Commission AFFIRMS the agency's final
decision regarding the class complaint, and DISMISSES complainant's
individual complaint.
The record reveals that complainant, a former Letter Carrier at the
agency's Colorado Station, Santa Monica Post Office in Santa Monica,
California, filed a formal EEO complaint with the agency on January 30,
1999, claiming that the agency had discriminated against him and a class
of persons as referenced above. Pursuant to 29 C.F.R. � 1614.204(d),
the Commission issued a Recommended Decision (RD) on July 28, 1999,
recommending dismissal of the class complaint.
The RD concluded that complainant, as class agent, failed to meet his
obligation to provide the requisite specificity and detail needed
to determine whether his complaint merited class certification.
Specifically, the RD noted that complainant was provided the
opportunity to provide a clearer statement of the claim and a more
precise definition of the class, but that complainant's response did
not provide clear guidance concerning the identity of the class,
and did not clarify the claim. In addition, the RD noted that
the complainant's complaint was unlikely to meet the typicality or
commonality prerequisite for maintaining a class action. In view of
the above failings, the RD recommended dismissal of the class complaint
under 29 C.F.R. � 1614.204(d)(2) and (4). The agency's final decision
implemented the RD. Pursuant to 29 C.F.R. � 1614.204(7), the agency
further notified complainant that it had considered whether to accept
or dismiss the complaint as an individual complaint. The agency said
that a review of the file revealed that complainant failed to submit
information sufficient to find that complainant stated a claim personal
to him, and the agency therefore dismissed the individual complaint for
failure to state a claim under 29 C.F.R. � 1614.107(a).
From the agency's decision dismissing both the class and individual
complaints, complainant appeals. On appeal, complainant argues that he
has submitted sufficient information to state a claim personal to him.
Regarding the class complaint, complainant offers no argument on appeal.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
After a careful review of the record, the Commission finds that
the Recommended Decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present any specific evidence concerning any
of the claimed class members other than himself. We therefore discern
no basis to disturb the FAD. Regarding the individual complaint,
we note that, while complainant has presented sufficient information
to state a claim personal to him, a review of the record reveals that
complainant entered into a pre-arbitration settlement agreement with the
agency on April 28, 1999, wherein he agreed to withdraw his complaint.
Accordingly, we AFFIRM the FAD's dismissal of the class complaint and
DISMISS complainant's individual complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
___03-28-02_______________
Date